Guillot v. Town of Lutcher

• Decision Date: 01 August 1979
• Docket Number: No. 10236,10236
• Citation: 373 So.2d 1385
• Parties: Bryan J. GUILLOT v. TOWN OF LUTCHER et al.
• Court: Court of Appeal of Louisiana — District of US

Page 1385

373 So.2d 1385

4 A.L.R.4th 1302

Bryan J. GUILLOT v. TOWN OF LUTCHER et al.

No. 10236.

Court of Appeal of Louisiana, Fourth Circuit.

Aug. 1, 1979.

Rehearing Denied Sept. 10, 1979.

Talbot, Sotile, Carmouche, Waguespack & Marchand, Vincent J. Sotile, Donaldsonville, for plaintiff-appellant.

Martin, Himel, Paytavin & Nobile, John L. Peytavin, Lutcher, for the Town of Lutcher, defendant-appellee.

Before GULOTTA, STOULIG and BEER, JJ.

STOULIG, Judge.

This appeal challenges the validity and constitutionality of an ordinance of the Town of Lutcher that declared appellant's car wash business a public nuisance. After this law was enacted, the town council voted to refuse to issue to plaintiff, Bryan Guillot, an occupational license for 1978. He then filed this suit to enjoin the enforcement of the ordinance and to obtain his occupational license by mandamus. The trial court dismissed his suit and gave him 120 days to cease operating the car wash.

When plaintiff started this business in 1971 he had two partners, but he bought out their interest and became sole proprietor in 1974. The facility, a self-service car wash operation, is equipped with hoses and a vacuum cleaner that are activated by inserting coins.

Plaintiff does not use supervisory personnel to operate the car wash, which is available to the public on around-the-clock basis. As a result, nearby residents have been subjected to frequent annoyances and disturbances which we list: (1) loud radios blare from the cars being washed late at night; (2) patrons litter the neighbors' yards; (3) several ladies residing in homes nearby have frequently been subjected to lewd propositions; (4) homes are sprayed with dirt and water on the occasions when there is a northerly wind; (5) patrons on occasion indulge in sexual activity on the premises; (6) car wash patrons "dig out" at high speeds when leaving the car wash; and (7) a noisy vacuum cleaner runs all night on occasions.

Lutcher Mayor Val Amato and members of the town council received numerous complaints about this car wash located in Woods Subdivision. Mr. and Mrs. Neal Veron, neighbors of plaintiff's establishment, verbally complained to the town counsel in March 1977 and were instructed to make formal complaints in writing. After this was done Guillot was notified to appear before the council and received copies of the complaints. At one point he promised to relocate his business and the council gave him several months to do so. Finally in October 1977 when no action was taken by plaintiff, an ordinance was adopted declaring the car wash a public nuisance. Thereafter, Guillot, through his attorney, informed the council he would not cease operation until he was enjoined by court judgment. In December 1977 the council voted to withhold the 1978 occupational license plaintiff was required to obtain to operate. Hence this suit.

Initially we must determine whether the car wash operation was a nuisance. In City of New Orleans v. Lenfant, 126 La. 455, 52 So. 575, 577 (1910) the Court defined a nuisance " * * * in the broad sense, is anything which incommodes or annoys or produces inconvenience or damage." The Court then distinguished between a nuisance per se (something which is intrinsically offensive) as opposed to a nuisance in fact (also termed a nuisance "per accidens"), which while not inherently annoying becomes so due to the circumstances surrounding its operation.

The party seeking to abate a nuisance in fact must prove the particular circumstances that create the nuisance and demonstrate the injurious consequences it produces. Robichaux v. Huppenbauer, 258 La. 139, 245 So.2d 385 (1971). The right of the individual citizen to enjoy his property free from annoyance and inconvenience is not absolute; the legal exercise of the rights of others must be considered; therefore the strict proof is required to abate a nuisance per accidens. Robichaux v. Huppenbauer, supra.

In concluding the complaints brought by Guillot's neighbors constituted a nuisance, the town council rested their result on overwhelming evidence. In McGee v. Yazoo & M. V. R. Co., 206 La. 121, 19 So.2d 21 (1944), the Court held that smoke, soot and cinders emitted from a coal burning engine may constitute a nuisance that may be abated. In Ryan v. Louisiana Soc. for Prevention of Cruelty, 62 So.2d 296 (La.App.Orl.1953), an animal shelter that was operated in such a way as to subject neighbors to noise throughout the night and to noxious odors was abated as a nuisance. So in this case we conclude the well-documented complaints establish that the noise, the litter, the immodest conduct of the patrons, the spray and dirt emanating from the property, and the speeding have all combined to render living near the car wash inconvenient and, in fact, intolerable. When property owners cannot use their patios, work in their gardens, allow their children to play in the yard, complete painting their homes, or live without having their yards littered all because of the circumstances by which plaintiff operates his unsupervised business they have a right to have it abated as a nuisance.

Appellant relies on his constitutional guarantee not to be deprived of property without due process of law, guaranteed by the 14th Amendment of the United States Constitution. In State v. Chisesi, 187 La. 675, 175 So. 453, 457 (1937), the Court points out that the citizen is " ' * * * to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling,' etc." In Butchers' Union Co. v. Crescent City Co., 111 U.S. 746, 4 S.Ct. 652, 28 L.Ed 585 (1884), the United States Supreme Court pointed out the liberty guaranteed by the 14th Amendment includes freedom to conduct a lawful business.

Like every other liberty, the right to conduct a business has certain restraints necessary to accommodate the legal rights of others. Thus...